ACLU, Education Groups Fight Suit To Overturn Constitutional Ban On Private School Funding

Michigan Advance

April 24, 2022

The American Civil Liberties Union (ACLU) of Michigan is working to stop a right-wing attempt to funnel state funds intended for public schools to private schools in the state.

In September, five families filed in federal court a lawsuit, Hile v. Michigan, to strike down the 1970 Blaine Amendment in the state Constitution, which bans using public dollars to fund parochial schools.

The plaintiffs argue that the amendment must be struck down to allow families to pay for private-school tuition using money from their “529 plans,” which are education savings accounts where the money grows tax-free.

“Really the reason why the people who brought this lawsuit are arguing that they should be able to use their money in this way for K-12 private schools is because their argument is that the entire Michigan constitutional provision about not funding private schools is unconstitutional,” said Dan Korobkin, ACLU of Michigan deputy legal director. “So if they were to win that argument, the consequences would be much greater than 529 plans. It would open the door to a massive school voucher program.”

Korobkin said if this lawsuit is successful it could potentially divert hundreds of millions of dollars from public schools to private schools.

The ACLU of Michigan, along with leading education organizations in the state like the Michigan Association of School Boards and the Michigan Association of School Administrators, filed an amicus brief earlier this year, calling on the court to throw out the suit.

If the court sides with the plaintiffs in Hile v. Michigan, the GOP-controlled Legislature would have to act to allow private schools to receive direct state funding. However, Gov. Gretchen Whitmer would likely veto that.

But Republicans, led by longtime school choice champion and former Secretary of Education Betsy DeVos, are working to circumvent the governor’s power to veto a voucher-style program.

In February, DeVos kicked off the Let MI Kids Learn initiative after Gov. Gretchen Whitmer vetoed a similar bill package in November.

If Let MI Kids Learns collects the required amount of signatures, the GOP-controlled Legislature will be able to vote the petition into law instead of voters deciding in November. This method would circumvent Whitmer and wouldn’t allow her to veto the measure.

“Regardless of what method they use, if this state constitutional amendment were no longer effective, then that would open the door to a lot of diversion of taxpayer dollars which are now dedicated to public schools. This could divert that money to private schools,” Korobkin said.

The plaintiffs in this case argue that the Blaine Amendment discriminates against religious schools.

Now, both sides are waiting for Judge Robert Jonker to make a decision on whether or not to throw out the case.

The Michigan Advance, a hard-hitting, nonprofit news site, covers politics and policy across the state of Michigan through in-depth stories, blog posts, and social media updates, as well as top-notch progressive commentary. The Advance is part of States Newsroom, a national 501(c)(3) nonprofit supported by grants and a coalition of donors and readers.